Fostering Free Exercise

Ganahl, Joseph R., Notre Dame Law Review

INTRODUCTION

Each child is "endowed by [its] Creator with certain unalienable Rights," (1) and through the natural course of generation, with a mother and father who are the presumptive guardians, not only of the child, but of the child's rights. The law shows great reverence for the parent-child relationship, and the State usually is very reluctant to interfere with it. (2) The task of the State in supervising the care of children whose own parents are unable to care for them is a very weighty one. When it becomes necessary for the State to act to protect the child because of parental incapacity, neglect, disinterest, or abuse, the optimal resolution is to work with the natural parents to solve whatever problems have led to the State intervention and to reunite the family, which is happily what occurs at least half of the time. (3)

While the State assumes the role of the parent, it is bound, both morally and legally, to respect the rights that still reside with the legal parents (4) and to safeguard the child's rights as well. Among these are the mutual rights of the parent to direct the child's religious formation and of the child to exercise her religious beliefs, which are closely intertwined. In order to protect these rights, children are often matched with religious foster agencies and families adhering to the same faith as the child. The question arises: what if there is a conflict between the teachings of a religious group and the public policy of the State?

A handful of states have terminated contracts or licenses of religious foster care agencies that refuse, based on their religious and moral convictions, to place children in same-sex or unmarried cohabitant households. These states defend their actions by pointing to a policy of prohibiting discrimination on the basis of sexual orientation or marital status. Applying such a policy in the context of foster care, however, can undermine the interest that children and their parents have in obtaining access to foster care providers that will embrace a child's faith and will reinforce the moral and religious formation that parents have begun to impart to their child. Any social benefits the State is seeking to obtain by the elimination of certain religious foster care providers is far outweighed by the costs to parents and children whose interest in religious matching is undermined. This Note argues that states should contract with a broad range of foster agencies, both religious and secular, and should not discriminate against agencies that utilize religious criteria in placing children with foster care families.

Part I of this Note examines the primary legal arguments that states have used to justify ending cooperation with certain religious foster care providers. As explained in Part II, the actions these states have taken are problematic in light of state religious matching statutes which encourage the placement of a child with a foster provider adhering to the same beliefs as the child or her parents. These religious matching statutes' constitutionality has been upheld against Establishment Clause challenges. Further, the policy implicit in them is buttressed by an independent "reasonable efforts" standard articulated in several cases which deal with the free exercise rights of children in the custody of the State and of the parents of those children.

Part III of this Note examines the how the First Amendment rights of parents and children may be burdened by states' refusal to contract with religious foster care agencies and whether such a policy is constitutionally permissible. Finally, Part IV offers a model statute that would make explicit and more easily enforceable the First Amendment assumptions that are implicit in religious matching statutes.

I. TERMINATING CONTRACTS WITH RELIGIOUS AGENCIES

A. Broad Outlines of the Controversy

There has been increasing controversy over religious social service agencies being forced to close because they decline to place children with same-sex or unmarried cohabiting couples. …

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